OMB Reform Becomes Law

Transition rules

NRU
Dec. 13, 2017
Dominik Matusik

A midst a rush by developers to file appeals, the provincial government's OMB reform package has received royal assent, and the province has revealed its rules to govern the transition period. 

Friday, municipal affairs minister Bill Mauro and attorney general Yasir Naqvi issued a statement that outlined the rules that will govern the transition period between the Ontario Municipal Board and the new Local Planning Appeal Tribunal. Appeals filed before the Building Better Communities and Conserving Watersheds Act received royal assent, will go to the OMB. Appeals filed after the new rules come into force will go to LPAT. Appeals filed after royal assent but before the new rules come into effect will go to the OMB if the application was completed prior to royal assent, and to LPAT if it was not. 

Stikeman Elliot partner Calvin Lantz told NRU that the transition rules are fair and workable, given the circumstances. 

"I was pleased when I saw a statement about [the province's] intent on how the transition provisions would work. They could have been much worse. And I think, in the circumstances, they are fair and workable for my land development clients." 

One way they could have been worse, Lantz says, is by making appeals retroactive, tied to a date earlier than royal assent. 

"Firstly, there is no requirement that the transition provisions necessarily relate to a future date. They could have been retroactive. And they're not. So it's nice to see [the province isn't] going to refer to a date that has already passed." 

Lantz says that there have been a number of developers who have chosen to file appeals in the weeks leading up to today's royal assent. 

"There's been an effort by many landowners and development lawyers to hold off on filing appeals while they monitor the information that was coming out regarding the transition provisions. But as time went on, there was a feeling that they would be better served by the devil they know than by the one they don't know. So the thought was file the appeal and get it before the board. At least they understand that framework. And I think in all cases it was the prudent thing to do." 

Burlington planning and building director Mary Lou Tanner told NRU that the transition rules are pretty well what she had expected. According to Tanner, there have been a number of applications appealed to the OMB where council has not made a decision, in anticipation of reform.

"We have seen a number of appeals of non-decisions under the existing rules of the Planning Act. And it was what we expected," she says. 

Hamilton planning director Steve Robichaud told NRU that his municipality has also experienced a flurry of appeals. 

"In the last three to four years, on average, we receive about two non-decision appeals a year," he says. "So, in the last four years, that would be about eight to 10 non-decision appeals. Since June or July of this year, we're [at] about 10- 12 non-decision appeals. So we've noticed that there's been a significant uptake, or spike, in non-decision appeals. And we anticipate that, with the wording in the regulations as proposed, we may see more non-decision appeals as applications reach those nondecision appeal milestones as per the Planning Act." 

He says that staff is now figuring out how to perform triage on the volume of work that has come in as a result of the anticipated OMB reform, as well as how to incorporate public consultation into the process. He adds that developers' fears may be somewhat assuaged by the transition rules. 

"People were making decisions not knowing what those regulations would be," he says. "People were hearing that they might be retroactive to the date of first reading, when the bill was first introduced. Now that the regulations are out, it provides a little bit of certainty for landowners and applicants as to how they want to manage their files. So I think that may help lower the concerns that people have and the feeling that they have to appeal their application non-decision to the OMB." 

Mississauga city solicitor Mary Ellen Bench told NRU that staff is now focused on helping council and the public understand the new framework. 

"The next couple of months, the biggest change will be helping council to understand what that means for applications that are considered by our Planning & Development Committee when the new rules come in," she says. "...So we're planning, in the first quarter of next year, to do a public council education session that will take them through what all of those changes are, what the role of staff will be, what the role of developers and their consultants will be, what the role of council will be in terms of having to hear more submissions than they're used to, and then what the role of the public will be." 

The Building Better Communities and Conserving Watersheds Act received royal assent yesterday and the provincial government is currently consulting on the timelines, practices, and procedures of the new tribunal, which it anticipates will be implemented by spring 2018.